The Judge
charged the jury:
That there was no question about the killing, and by the prisoner, and if they found that that had been the result of [423]*423intemperance or passion they would convict him, hut if it was the result of insanity they would acquit him.
But it did not necessarily follow that, on the acquittal of a deranged man, he was to be turned loose upon the community to endanger its peace or safety by some other deed of violence and bloodshed. The law had wisely provided in such a case that the party should be committed to a lunatic asylum, there to remain for life, or until reason had resumed its sway and expelled all illusions from the mind.
It was necessary to bear this in mind, because there was a very general prejudice against the defense of insanity, from a fear that personal safety might thus be endangered.
Then, again, they must bear in mind the difficulty alike of making out and of defending against the allegation of insanity.
While, on the one hand, it was painful to see the punishments of crime inflicted on those whom God had already afflicted with the most distressing disease known to humanity, so on the other it was revolting to behold the real murderer or felon turned loose upon the world, upon a false pretense of disease, or from seeing it seized upon as an excuse for an unwarrantable acquittal.
The statistics of crime showed that it was much more frequent in our courts of justice to convict the really insane than it was to acquit real criminals on a false pretense of insanity.
And there was no language known, either in the law or in science, that could so clearly and precisely define insanity that its presence or absence could be certainly ascertained, for it was one of the most difficult things in the world to tell where sanity ends or insanity begins, or how much they can sit down together side by side in the mind, nor when may occur or how long continue a lucid interval, either from the entire extinction of the disease, or a mere temporary slumbering in its permanent abode.
All these considerations would go to show to the jury how difficult was their task in all cases of this character. But the court did not overlook an additional difficulty peculiar to this case.
[424]*424During all the time which had elapsed since the homicide, there had been little or no evidence of insanity. Indeed, had the case stood upon this evidence alone, there could have been no difficulty in declaring the prisoner to be in his right mind. So, on the other hand, if the condition of the prisoner, as it had been proved to be for the same length of time before the act, had continued afterwards, there would be no difficulty in believing him to be unsound.
So that, to acquit the prisoner on the ground of insanity, the jury must find his mind to have been unsound up to and including the very moment of doing the act, and that almost immediately, and certainly within a very short time after it, his mind was restored to its soundness. Or, in other words, that the act done, of itself cured the disease from which it had flowed and in which had been its origin.
How, this was not impossible. It might indeed be so, and it was for the jury to say whether in fact it was so. And in regard to this, there was one consideration which would aid them in performing their responsible duty, and that was, that there was no well grounded pretense that the badges of insanity which had been proved in the case had been fabricated. The conduct and the emotions described were undoubtedly real and genuine, and therefore the question was narrowed down simply to this, were such conduct and emotions, out of which the homicide had flowed, the result of jealous and violent passion, or of the disease of mental aberration ?
The verdict was guilty, and the prisoner was sentenced to be executed.
Immediately after the trial I received from one of the counsel for the prisoner the letter which follows, and in February following I wrote to the Hon. Jomj Staktow Gould, member of the assembly from Columbia county, the letter, a copy of which I annex.
The result was, that the execution of the prisoner was dispensed with, and he was committed to the State Lunatic Asylum.
[425]*425Hew York, January 18, 1847.
Hon.-John W. Edmonds,
Dear Sir : You will, I am sure, not be surprised to learn that an immediate application is about to be made to the Governor, for the interposition of the power of pardon in the case of Calvin Russ. I speak for myself and my associates when I say, that, although our mere professional duty has been so discharged as to have received the approbation of our own consciences, we yet feel that we have a still higher duty to perform, as citizens, in presenting the case to the consideration of the Executive, and in urging, by every honorable means in our power, the exercise of his prerogative in favor of our unhappy client. In this effort, we think we cannot be mistaken in anticipating your sincere and cordial co-operation, and that of your associates upon the bench. In presenting the case to the jury, you no doubt felt it to be your duty to express no opinion of your own upon the facts; but it is, of course, nevertheless true, that you could not but have entertained such an opinion; and we are much deceived in our appreciation of the force of the testimony, if that opinion, when expressed, will not be found to be in accordance with our own. Looking as we cannot but do at the conclusiveness with which the insanity of the prisoner was established by testimony, which, in your opinion, as expressed to the jury, was entitled to full credit—looking at the unanimous medical opinion which was given by men of the highest eminence in that peculiar branch of the profession — an opinion not merely of the former but of the present insanity of the prisoner, based upon the evidence of the prosecution itself and upon a personal observation of the prisoner—and looking at the cir-, cumstances of the homicide as consistent with, if not corroborative of that testimony, we feel convinced that the verdict can only be sustained by a very subtle speculation as to the probable state of mind of the prisoner, at the instant of the commission of the homicide. We are far from intending to question the purity of the motives of the jury, but the correctness of their conclusion is a matter of which we have a right to speak—and in speaking of it as unwarranted by the evidence, we think we can confidently appeal to you to sustain us.
[426]*426I, therefore, beg to ask of you to furnish me with an expression of your opinion upon the case at your earliest convenience, and also to forward to the Governor your official report at as early a day as practicable.
I had intended to be present at the pronouncing of the sentence, but was unavoidably detained until a few minutes after it was delivered. I cannot but infer, however, from the entire omission pn your part to express, either directly or indirectly, any approval of the verdict, that you did not feel disposed to give your personal or official sanction to a result of which I do not doubt you wholly disapproved.
I have the honor to be, dear sir,
Tour very obedient servant,
DAVID GRAHAM.
New Tobk, February 18, 1847.
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The Judge
charged the jury:
That there was no question about the killing, and by the prisoner, and if they found that that had been the result of [423]*423intemperance or passion they would convict him, hut if it was the result of insanity they would acquit him.
But it did not necessarily follow that, on the acquittal of a deranged man, he was to be turned loose upon the community to endanger its peace or safety by some other deed of violence and bloodshed. The law had wisely provided in such a case that the party should be committed to a lunatic asylum, there to remain for life, or until reason had resumed its sway and expelled all illusions from the mind.
It was necessary to bear this in mind, because there was a very general prejudice against the defense of insanity, from a fear that personal safety might thus be endangered.
Then, again, they must bear in mind the difficulty alike of making out and of defending against the allegation of insanity.
While, on the one hand, it was painful to see the punishments of crime inflicted on those whom God had already afflicted with the most distressing disease known to humanity, so on the other it was revolting to behold the real murderer or felon turned loose upon the world, upon a false pretense of disease, or from seeing it seized upon as an excuse for an unwarrantable acquittal.
The statistics of crime showed that it was much more frequent in our courts of justice to convict the really insane than it was to acquit real criminals on a false pretense of insanity.
And there was no language known, either in the law or in science, that could so clearly and precisely define insanity that its presence or absence could be certainly ascertained, for it was one of the most difficult things in the world to tell where sanity ends or insanity begins, or how much they can sit down together side by side in the mind, nor when may occur or how long continue a lucid interval, either from the entire extinction of the disease, or a mere temporary slumbering in its permanent abode.
All these considerations would go to show to the jury how difficult was their task in all cases of this character. But the court did not overlook an additional difficulty peculiar to this case.
[424]*424During all the time which had elapsed since the homicide, there had been little or no evidence of insanity. Indeed, had the case stood upon this evidence alone, there could have been no difficulty in declaring the prisoner to be in his right mind. So, on the other hand, if the condition of the prisoner, as it had been proved to be for the same length of time before the act, had continued afterwards, there would be no difficulty in believing him to be unsound.
So that, to acquit the prisoner on the ground of insanity, the jury must find his mind to have been unsound up to and including the very moment of doing the act, and that almost immediately, and certainly within a very short time after it, his mind was restored to its soundness. Or, in other words, that the act done, of itself cured the disease from which it had flowed and in which had been its origin.
How, this was not impossible. It might indeed be so, and it was for the jury to say whether in fact it was so. And in regard to this, there was one consideration which would aid them in performing their responsible duty, and that was, that there was no well grounded pretense that the badges of insanity which had been proved in the case had been fabricated. The conduct and the emotions described were undoubtedly real and genuine, and therefore the question was narrowed down simply to this, were such conduct and emotions, out of which the homicide had flowed, the result of jealous and violent passion, or of the disease of mental aberration ?
The verdict was guilty, and the prisoner was sentenced to be executed.
Immediately after the trial I received from one of the counsel for the prisoner the letter which follows, and in February following I wrote to the Hon. Jomj Staktow Gould, member of the assembly from Columbia county, the letter, a copy of which I annex.
The result was, that the execution of the prisoner was dispensed with, and he was committed to the State Lunatic Asylum.
[425]*425Hew York, January 18, 1847.
Hon.-John W. Edmonds,
Dear Sir : You will, I am sure, not be surprised to learn that an immediate application is about to be made to the Governor, for the interposition of the power of pardon in the case of Calvin Russ. I speak for myself and my associates when I say, that, although our mere professional duty has been so discharged as to have received the approbation of our own consciences, we yet feel that we have a still higher duty to perform, as citizens, in presenting the case to the consideration of the Executive, and in urging, by every honorable means in our power, the exercise of his prerogative in favor of our unhappy client. In this effort, we think we cannot be mistaken in anticipating your sincere and cordial co-operation, and that of your associates upon the bench. In presenting the case to the jury, you no doubt felt it to be your duty to express no opinion of your own upon the facts; but it is, of course, nevertheless true, that you could not but have entertained such an opinion; and we are much deceived in our appreciation of the force of the testimony, if that opinion, when expressed, will not be found to be in accordance with our own. Looking as we cannot but do at the conclusiveness with which the insanity of the prisoner was established by testimony, which, in your opinion, as expressed to the jury, was entitled to full credit—looking at the unanimous medical opinion which was given by men of the highest eminence in that peculiar branch of the profession — an opinion not merely of the former but of the present insanity of the prisoner, based upon the evidence of the prosecution itself and upon a personal observation of the prisoner—and looking at the cir-, cumstances of the homicide as consistent with, if not corroborative of that testimony, we feel convinced that the verdict can only be sustained by a very subtle speculation as to the probable state of mind of the prisoner, at the instant of the commission of the homicide. We are far from intending to question the purity of the motives of the jury, but the correctness of their conclusion is a matter of which we have a right to speak—and in speaking of it as unwarranted by the evidence, we think we can confidently appeal to you to sustain us.
[426]*426I, therefore, beg to ask of you to furnish me with an expression of your opinion upon the case at your earliest convenience, and also to forward to the Governor your official report at as early a day as practicable.
I had intended to be present at the pronouncing of the sentence, but was unavoidably detained until a few minutes after it was delivered. I cannot but infer, however, from the entire omission pn your part to express, either directly or indirectly, any approval of the verdict, that you did not feel disposed to give your personal or official sanction to a result of which I do not doubt you wholly disapproved.
I have the honor to be, dear sir,
Tour very obedient servant,
DAVID GRAHAM.
New Tobk, February 18, 1847.
Deab Sib: During January, and about five weeks since, a man was convicted before me of murder, and I sentenced him to be executed on the 12th of March. The circumstances attending his case have given me a good deal of anxiety, and I have been daily in the hope of hearing from the Governor on the subject.
I hastened to transmit to him my report, that he might receive it before the judges of the Supreme Court should leave Albany, so as to afford him an opportunity, in compliance with the statute, of laying the case before them, and I suggested to him in my report my doubts as to the propriety of allowing the convict to be executed. This I did in order to call his early attention to the case.
I proposed to him, also, that I would cause the prisoner to be carefully regarded in the meantime, with his permission, so as-to endeavor to ascertain whether his insanity existed or yet continued.
Contrary to my expectations, some five weeks have elapsed -without my hearing from the Governor, even so much as to know whether my report has been received by him, and, as the time of execution is rapidly drawing nigh, I do not feel that I should be justified in permitting any feeling of [427]*427courtesy any longer to keep me silent, and as I know your feelings on such subjects, I take the liberty of addressing you, in the confident expectation that it will receive from you prompt • attention.
The defense set up for the prisoner was insanity, and, though túe jury found a verdict against the plea, I have never been satisfied that he was not insane. On the other hand, my doubts have been so strong that I have not been able to overcome the dread I have, that an insane man may be executed. Therefore it was that I hastened to call the Governor’s attention to the case, and hence it was that I offered to him to give the matter my attention after his condemnation.
The statute has so entirely withdrawn from me all control over the case, after conviction, and has so exclusively devolved it upon the Governor, that I have no right’to interfere in it. Yet, my doubts of the propriety of an execution are so strong that I cannot be silent.
I cannot, after my offer to the Governor, and the manner in which it has been received, venture again to address him, lest I should be charged with impertinently interfering with his duty.
But, as an old friend, I address you, in the hope that you will so far interest yourself in the case, as to ascertain from the Governor whether my report has been received by him, and what measures have been taken to ascertain the continuance of the prisoner’s insanity; so that, if nothing has been done, an application may be made to the Legislature to respite the sentence, till that question can be finally and satisfactorily determined.
It could have been ascertained during the four or five weeks that have elapsed since the sentence, or, at all events, much could have been done towards it; but, as that time has now passed away without any such effort, it may be advisable, if the Governor should decline to interfere, for the Legislature so far to interfere as to afford an opportunity of ascertaining whether the insanity does now exist. For what can be more revolting than the execution of a man too deficient in intellect to understand the quality of the act he has committed, or to appreciate the consequences which flow to him from it ?
[428]*428May I ask of you. the favor of your earliest attention to this matter ? I make no apology for troubling you other than what may be found in your own feelings on the subject.
Very truly yours,
J. W. EDMONDS.
Hon. J. S. Gould.